¹ Moley, Raymond, Politics and Criminal Prosecution (1929), p. 189.Google Scholar Chapters 7 and 8 contain an excellent discussion of this phase of the subject, which is beyond the scope of the present note. The recent Al Capone fiasco in the federal district court sitting in Chicago shows the methods employed, and also illustrates the manner in which such compromise agreements occasionally fall through because the judge refuses to coöperate with the prosecution. See infra, pp. 8, 10.

² Patton v. United States (1930), 281 U.S. 276, 50 S. Ct. 253. Although this was not a true waiver case, the facts having been found by a jury of eleven men, the opinion states that we “must treat both forms of waiver as in substance amounting to the same thing.” But cf. Commonwealth v. Hall (1928), 291 Pa. 341, 140 A. 626, 58 A. L. R. 1023. I discuss this conflict of opinion, together with the other constitutional and statutory problems involved in the non-jury trial of felony cases, in an article which is to appear in the California Law Review for January, 1932.

³ People v. Fisher (1930), 340 Ill. 250, 172 N.E. 722.

⁴ Connecticut (1921), Acts 1921, c. 267, s. 2; Indiana (1905), Burns' Anno. Stat. 1926, s. 2299; Maryland (1852), Code 1924, art. xxvii, s. 549; New Jersey (1898), Comp. Stat. 1910, s. 13; Oklahoma (1911), Cowden v. State, 5 Okl. Cr. 71, reversing In re McQuown (1907), 19 Okl. 347, 91 P. 681, and holding that art. vii, s. 20 of the constitution of 1907 applies to criminal as well as civil cases; Washington (Territorial Act), Remington's Comp. Stat., 1922, s. 2144; Wisconsin (1925), Laws 1925, c. 124, s. 1. Special acts authorizing waiver in various Wisconsin counties, except in capital cases, date from 1881. For the Maryland practice of waiving a jury at common law, see Bond, Carroll T., “The Maryland Practice of Trying Criminal Cases by Judges Alone, Without Juries,” in 11 Amer. Bar Assoc. Jour. 699 (1925)Google Scholar, and Judicial Council of Massachusetts, First Report (1925), p. 97Google Scholar. Only the Washington law excepts capital cases. Connecticut, Acts 1927, c. 107, provides that such cases shall be tried by a bench of three judges. In Oklahoma, the prosecuting attorney, and in Indiana the court as well, must consent to such a waiver before it can become effective.

⁵ California (1928), Constitution, art. 1, s. 7; Illinois (1930), People v. Fisher, op. cit., supra note 2; Massachusetts (1929), Gen. Laws, c. 263, s. 6; Michigan (1927), Acts 1927, pp. 284, 318; Ohio (1929), Code 1930, ss. 13442–4, 13442–5; Rhode Island (1929), Gen. Laws, c. 407, s. 78; Virginia (1928), Constitution, art. i, s. 8. Massachusetts excepts capital cases. In Rhode Island the consent of the court, and in Virginia of the prosecuting attorney as well, is required.

⁶ Lucius P. Fuller, clerk of the superior court for Hartford county, writes that “the jury is waived in probably more than three-fourths of the cases which are tried.” Letter dated May 12, 1931. From Waterbury comes news that “nearly half of our cases are now tried by the court.” Letter from Mr. George H. Freeman, clerk of the Superior Court, dated May 6, 1931. In Bridgeport, 21 cases, ranging in seriousness from assault with intent to murder, to lascivious carriage, were tried by the Superior Court without a jury between September, 1929, and July, 1930. Letter from Mr. Michael J. Flanagan, clerk, dated May 9, 1931. Mr. Richard H. Phillips, reporter of the Supreme Court of Errors, and until recently secretary of the Judicial Council, summarizing the situation for the state as a whole, says that “very few criminal cases are tried to the jury, the accused almost always preferring to be tried to the court.” The distinction between felonies and misdemeanors has been abolished in Connecticut; hence no separate figures are available as to felonies and the major misdemeanors. (Only the more serious criminal prosecutions are tried in the Superior Court.) The belief seems to be general that there is little difference, so far as waiver is concerned, as between what other jurisdictions would denominate felonies and misdemeanors, respectively, the controlling factors being other than the seriousness of the penalty that follows conviction.

⁷ In the Supreme Bench of Baltimore, which tries all felonies as well as the major misdemeanors, the non-jury criminal trials have consistently averaged 95 per cent. In 1927, 4,588 cases were tried to the court, while only 229 were tried with juries. California Judicial Council, Second Report (1929), p. 44Google Scholar. Cf. the circuit court for Washington county, Hagerstown, where approximately 25 per cent of the contested felony cases are tried without a jury. Letter from Mr. Edward Oswald, clerk, dated May 20, 1931.

⁸ ”In 1929, there were 1,852 cases brought before the Municipal Court, thirteen of which were pending on January 1st, 1929. Seven of these cases were pending on January 1st, 1930, which made a total of 1,845 cases disposed of during the year. The total of cases, nolled, dismissed, transferred to the Circuit Court, cases in which the defendants were adjudicated insane before trial and committed, and so forth, amounted to 76. Deducting this figure from the 1,845 cases disposed of leaves a balance of 1,769. Deducting 988 pleas of guilty, leaves a balance of 781 cases that were contested; 104 of these were jury trials, and 677 were tried on waivers. This amounts to approximately 13 per cent jury trials and 87 per cent waivers of jury. In 1930, there were 2,053 cases before the court, eight of which were pending on January 1st, 1931. This left a balance of 2,045 cases disposed of. Eighty-eight of these cases were disposed of by being nolled and dismissed, and by transfer to the Circuit Court, others by reason of the defendants being adjudicated insane before the trial and committed, and so forth. This left a total of 1,957 cases. Of these, 1,045 were disposed of on pleas of guilty, leaving a balance of 912 contested cases. There were 130 jury issues and 782 waivers. This amounts to approximately 14 per cent juries and 86 per cent waivers of juries.” Letter from Hon. George A. Shaughnessy, judge of the Municipal Court of Milwaukee, dated May 25, 1931. This court tries felony cases exclusively. It will be noted that the proportion of cases disposed of other than by actual trial is exceptionally low. Cf. Illinois Crime Survey (1929), p. 102. Milwaukee authorities attribute this in. part to the advantages accruing from the non-jury trial.

⁹ Mr. Phil K. Oldham, county attorney of Muskogee county, writes: “I have been in this office for almost six years and have never tried a defendant before the court without a jury…. I am sure that you will find this situation all over the state.” Letter dated June 22, 1931. Mr. W. L. Coffey, county attorney of Tulsa county, writes that “it is very seldom that defendants in this state waive then right of trial by jury.” In his own county, such waivers average less than two a year. Letter dated June 24, 1931. Mr. Lewis B. Morris, county attorney of Oklahoma county, the most populous in the state, reports two non-jury trials during the first six months of the year. In twelve years' practice of criminal law, his firm never handled a case in which the defendant pled not guilty and waived a jury trial. Letter dated July 13, 1931.

¹⁰ Mr. Benjamin T. Hart, chief deputy to the clerk of the Superior Court of King county (Seattle), writes that “waivers come so infrequently,” in misdemeanor as well as felony cases, that neither he nor any one in the office of the presiding judge can recall such a waiver in recent months. Letter dated April 30, 1931. Mr. Charles W. Greenough, prosecuting attorney for Spokane county, states that during his eight years' incumbency “we have had but one case which was submitted to the court.” Letter dated May 6, 1931. From Tacoma comes word that “ To my knowledge no defendant in Pierce county during the past seven years has taken advantage of [the statute] authorizing a waiver of trial by jury…. Inquiry has been made of other members of this office and of the judges, and no case has been recalled by any of them. Letter from Prosecuting Attorney Bertil E. Johnson, dated May S, 1931. The same news comes from the rural sections. “In the eight years that I have been in this office,” writes Mr. Charles E. Vetter, clerk of the superior court of Yakima county, “there have been but two instances where [a jury was waived]. One was a case of driving while drunk, and the other was a liquor case under the felony penalty.” Letter dated May 4, 1931. Mr. Archie B. Stewart, county clerk of Whatcom county, cannot recall a single instance of such a waiver. Letter dated May 2, 1931.

¹¹ See Oppenheim, S. C., “Waiver of Trial by Jury in Criminal Cases” (1927), 25 Mich. L. Bev. 695CrossRefGoogle Scholar. In both states, waiver in misdemeanor cases is the general rule, although the proportion is much lower in offenses of the more serious grade. In Passaic county (Paterson), of the 855 trials on indictments during 1930 not more than 5 per cent were by jury. (The figures include both misdemeanors and “high misdemeanors.” The word “felony” is not used in New Jersey). Letter from Mr. Lloyd B. Marsh, county clerk, dated May 29, 1931. Non-jury trials became so frequent that in 1926 the New Jersey legislature created a special system of criminal district courts to try only those cases where indictment and trial by jury are waived.

¹² ”In the two and one-half years that this provision has been in effect we have not had a single case of a felony jury of less than the former number of 12, but… probably 70 per cent of the pleas of not guilty are now tried by the court without a jury. Letter from Mr. Thomas B. Miller, deputy clerk, Hustings Court, Richmond, dated May 16, 1931. (The Virginia statute authorizes a complete waiver, or an agreement upon any number of jurors less than 12. Doubtless the real purpose of the latter is to validate a conviction following the forced dismissal of a juror).

¹³ Since the decision in People v. Fisher (1930), op. cit., supra note 13, “juries have been waived in two-thirds of the cases tried in the Criminal Court” of Chicago, and a like proportion in the other courts. Judicial Advisory Council of Cook County, First Meport (1931), p. 27Google Scholar. Hou. Denis B. Sullivan, judge of the Superior Court and a member of the Council, writes: “I am not thoroughly advised as to the percentage of jury waivers between felonies and misdemeanors, but understand that there is no difference. In fact, 68 per cent of such waivers relate to our Criminal Court, which tries only felonies in so far as the first count of the indictment is concerned.” Letter dated May 18, 1931. See also Judicial Advisory Council of Illinois, First Report (1930), p. 26Google Scholar.

¹⁴ For the year ending June 30, 1930, 659 of the 2,270 contested felony cases were tried to the court. This is 29 per cent. For the four metropolitan counties, Alameda (Berkeley, Oakland), Los Angeles, San Diego, and San Francisco, the proportions were 18.4, 43.6, 23.2, and 11.0 per cent, respectively. In comparison, of the 223 misdemeanor cases tried in the Superior Court, which handles all felony cases, the proportion of waivers to total cases tried was 42.6 per cent for the state at large, and 41.7, 57.7, 15.5, and 28.6 per cent, respectively, for the four metropolitan counties. It will be noted that in the Los Angeles courts, which handle approximately 46 per cent of all the cases, non-jury trials are far more frequent than in the balance of the state. The Judicial Council, in its Third Report (1931), p. 35, states: “During the fiscal year ending June 30, 1929, out of a total of S67 contested criminal trials, 241, or slightly more than 27 per cent, were heard without a jury. In the following year this ratio had increased quite considerably, with the result that approximately 44 per cent of all the defendants tried waived a jury.” It is hard to say what figures those cited for 1928-29 represent ; Appendix B clearly shows that 1,254 persons were convicted of felony in that year. The statement regarding 1929-30 was apparently taken from an estimate in the Second Report (1929), p. 45Google Scholar; but this prediction failed to materialize. I have prepared my figures from Appendices B and C of the Council's Third Report.

¹⁵ Judicial Council of California, Second Report (1929), p. 45Google Scholar.

¹⁶ Letter from Miss Flora G. Dewey, deputy county clerk, dated May 27, 1931.

¹⁷ Letter from Mr. John R. Campbell, clerk of the criminal court, dated May 11, 1931. Waiver is most frequent in morals cases.

¹⁸ Letter from Hon. Homer G. Powell, chief justice of the court of common pleas, dated May 5, 1931.

¹⁹ Fourth Report (1930), p. 8Google Scholar. The statistical summaries appended to the Report show but five instances of non-jury criminal trials, including misdemeanors as well as felonies, in the courts of general jurisdiction during a year's time. In fact, as the Council bitterly complained in its First Report (1927), p. 23Google Scholar, “of the civil trials only some 2 or 3 per cent are without jury.”

²⁰ ”It is probable that [in 1929] more persons were prosecuted in the federal court for violations of the prohibition laws than were prosecuted in the state courts for all criminal offenses.” Judicial Council of Idaho, First Report (1930), p. 12Google Scholar.

²¹ That such was the law was accepted as settled by the decisions in Thompson v. Utah (1897), 170 U.S. 343, 345, 18 S. Ct. 620 (dictum); Dickinson v. U.S. (CCA. 1908), 159 F. 801; Low v. U.S. (CCA. 1909), 169 F. 86; and Coates v. U.S. (CCA. 1923), 290 F. 134. The opinions even threw a cloud of doubt upon the power of Congress to authorize criminal trials without a jury, or with one of less than 12 men, the defendant consenting. Only “petty offenses” were excepted—Schick v. U.S. (1908), 195 U.S. 65, 24 S.Ct. 826—and no one appeared ready to champion the doctrine that a violation of the “law of all laws” was a petty offense, at least under the existing provisions of the Volstead Act. See the article cited supra, note 2.

²² See National Commission on Law Observance and Enforcement, Report Supplemental to the Preliminary Report on Observance and Enforcement of Prohibition (1930), House of Representatives, 71st. Congress, 2d. Session, Document No. 252, pp. 20 ff.

²³ Letter from Hon. A. W. Johnson, dated May 25, 1931. Judge Johnson explains: “As you understand, until… April 14, 1930 [the date of the Patton case, op. cit., supra note 1], the legality of the waiver of jury trials was questioned, but notwithstanding this doubt on account of the large number of cases I permitted [it]. I do not know of any other district in which such procedure prevailed.” Nor does the present writer know of any such practice elsewhere. But see infra, note 47. It seems a little strange that this practice should have been first followed by a judge sitting in the state of Pennsylvpnia, who, immediately preceding his appointment to the federal bench, had fo: ten years been a judge of the state court of common pleas, Pennsylvania being one of the states in which a belief in the illegality of a waiver of jury trial at common law has been most constantly respected. See Commonwealth v. Hall (1928), 219 Pa. 341, 140 A. 626, where Mr. Chief Justice Moschzisker, who was unusually well informed upon trial courts in general, and jury trial in particular, stated (p. 354) that the case at bar appeared to be the first instance where a Pennsylvania judge, on a plea of not guilty, had undertaken to try an indictable offense without a jury. Had the practice first arisen in Maryland, it would have been less surprising. See the article by Mr. Chief Justice Bond, op. cit., supra note 4.

²⁴ Op. cit., supra note 2.

²⁵ Op. cit., supra note 23.

²⁶ Letter from Judge O. B. Dickinson, Eastern District of Pennsylvania, dated May 25, 1931.

²⁷ “We have, however, had a few cases in which the defendant has stipulated to be tried by a jury of less than twelve, but those cases are rare indeed. This applies both to felony and misdemeanor actions.” Letter from Judge F. C. Jacobs, dated May 22, 1931.

²⁸ “During my eighteen years' experience on the bench I do not recall any case where the defendant in a criminal action waived a jury. That procedure is common in Connecticut state courts, but it has never been adopted in this federal district. This is true of both felony and misdemeanor prosecutions.” Letter from Judge Edwin S. Thomas, dated May 25, 1931.

²⁹ Judge George A. Carpenter, states that he “never accepts a waiver of a jury in a criminal case.” Letter dated May 20, 1931.

³⁰ “We have had no such trials here either before or since the [Patton case], and I think we are not likely to have many. They [the defendants] rather think the jury is their only hope. Even in misdemeanor cases, they go to a jury, so you can put this district down as being strong for the jury trial so far as defendants in criminal cases are concerned.” Letter from Judge John A. Peters, dated May 25, 1931.

³¹ “I have been a judge of the federal district court for Massachusetts for eight years. During that time I have never known a jury trial in a criminal case to have been waived.” Letter from Hon. James A. Lowell, dated May 26, 1931.

³² Hon. William A. Cant, letter dated May 27, 1931. Judge Cant feels that waivers may be expected in the future, “but not many for a considerable time to come.”

³³ “There has been no instance of a waiver … in any criminal case.” Letter from Judge Thomas C. Munger, dated May 23, 1931.

³⁴ Judge William Clark states: “In six years' experience I have never known the waiver of jury trials.” Judge John B. Avis recalls a recent case where “the defendant's counsel offered to go to trial without a jury, but the United States attorney objected, and the case waB submitted to a jury.” Letters dated May 25, 1931.

³⁵ Hon. Grover M. Moscowitz, Eastern District of New York, states: “No nonjury trials, either felonies or misdemeanors, have been tried before me, or any other judge of the court so far as I have known.” Letter dated May 18, 1931. Judge. Bondy, New York City, writes to the same effect, concerning the Southern District. Letter dated May 22, 1931.

³⁶ Judge Johnson J. Haynes states that in prosecutions growing out of the prohibition law, the Mann Act, and the Dyer Act, defendants frequently offer to try the case to the court, but since he believes that “where the facts are in dispute the jury should determine the matter” such offers are rejected. Letter dated May 25, 1931.

³⁷ “We have had no requests for waivers of juries in the trials of criminal cases.” Letter from Mr. Lawrence Lennon, secretary to the judges, Northern District of Ohio, dated May 27, 1931.

³⁸ No offers to waive juries have been made. Letter from Miss Alice E. Richards, secretary to Judge Letts, dated May 25, 1931.

³⁹ “I am aware of the decision [Patton v. U.S.] that you refer to, but not a single defendant has taken advantage of that privilege in this district.” Letter from Judge James D. Elliott, dated May 25, 1931.

⁴⁰ “I am familiar with Patton v. United States, decided in April, 1930, but notwithstanding this decision, no criminal cases, either felonies or misdemeanors, in my district, are tried to the court without a jury. I do not feel that under the Patton case the trial of criminal cases without a jury is to be pursued as a practice. I think the rule is intended to be applied with circumspection in special circumstances.” Letter from Judge J. Stanley Webster, dated June 10, 1931.

⁴¹ “I have had no such waiver either in felony or misdemeanor cases in my court. About 98 per cent of the criminal cases instituted in this court are on confessions. The others are tried by jury.” Letter from Judge W. E. Baker, dated May 19, 1931.

⁴² Letter from Judge F. A. Geiger, dated May 18, 1931.

⁴³ Letter dated May 22, 1931. His statement that “in both the state courts and the United States district courts in California it has never become customary to waive a jury trial in criminal cases amounting to a felony” would seem to show that he is not aware of recent developments. See supra note 14 and infra note 45.

⁴⁴ Letter from Judge William H. Atwell, dated May 18, 1931.

⁴⁵ Hon. Samuel W. McNabb, United States attorney for the district, estimates that since the decision of the Patton case, juries have been waived in approximately 25 per cent of all contested cases. He adds: “There are no special types of cases in which waivers have been particularly noticeable, nor is there any particular difference with regard to felony or misdemeanor actions. In our courts, however, a large percentage of the cases coming on for trial are felony cases.” Letter dated June 12, 1931.

⁴⁶ “Since April 14, 1930 [the date of the Patton case] … the records of this court disclose that 16 defendants have elected to waiver a jury. These were all cases under the national prohibition act, seven of them being brought under profusions of that act relating to offenses which constituted misdemeanors, and nine under provisions constituting felonies.” Letter from Judge William C. Coleman dated May 19, 1931. In view of the practice in the state courts, one would have expected a much larger number of non-jury trials. See supra note 7.

⁴⁷ “I estimate that during the past two years in my jurisdiction 85 to 90 percent of the cases tried in my court were disposed of on pleas of guilty. Five to ten per cent of the other cases are submitted to me to pass upon the evidence… and not over five per cent are contested before a jury.” Letter from Judge Edwin Yates Webb, dated May 28, 1931. Prior to the Patton case, non-jury trials were secured through an agreement to plead guilty if the judge found that the evidence sustained the charge. Otherwise, the district attorney agreed to nol. pros. the case. Such a procedure is in use today in many jurisdictions where a waiver is illegal. In some courts, including the Municipal Court of Milwaukee, even legitimate pleas of guilty are handled in this manner, as experience has shown that occasionally defendants plead guilty of charges of which they are innocent.

⁴⁸ Op. cit., supra note 2.

⁴⁹ ”Letter from Hon. Leo A. Rover, United States attorney, District of Columbia, dated May 27, 1931.

⁵⁰ Ibid.

⁵¹ Code of the District of Columbia 1929, Title 18, s. 165, p. 167, sustained in Belt v. United States (1894), 4 App. D.C. 25, 22 Wash. Law Rep. 447. The Supreme Court refusing to review the case, In re Belt (1895), 159 U.S. 95, 15 S. Ct. 987, the decision of the Court of Appeals of the District has stood unchallenged since that date. See the article cited supra note 2.

⁵² Op. cit., supra note 2.

⁵³ Op. cit., supra note 32.

⁵⁴ Op. cit., supra note 44. And see supra note 2.

⁵⁵ The wide scope and intensity of this feeling is evident from the general tenor of the letters received. Few question the legality of waiver under the Patton case (op. cit., supra note 2), but many apparently doubt the desirability of the practice as applied to their court.

⁵⁶ Op. cit., supra note 10.

⁵⁷ Op. cit., supra note 9.

⁵⁸ Op. cit., supra note 19.

⁵⁹ Code 1923, s. 4647. Of course a different rule prevails as to “petty offenses.”

⁶⁰ “Letter from Hon. Walter B. Jones, Montgomery, Alabama, dated April 28, 1931. Judge Jones is speaking of the general practice in the entire state.

⁶¹ Laws, 1927, c. 233 S.I.

⁶² Letter from Attorney-General Reuben Satterthwaite, Jr., dated May 14, 1931.

⁶³ Because of requests from many who furnished information for this section, fewer statements as to sources are given.

⁶⁴ Op. cit., supra note 49.

⁶⁵ “The existence of a jury makes of the distinction between law and facts an essential principle of the procedure, while one of the main features of the common law is precisely its failure to distinguish facts and law!” Pierre Lepaulle, “Jury, Democracy, and Efficiency,” Forum, July, 1928, p. 52.

⁶⁶ Op. cit., supra note 49.

⁶⁷ Op. cit., supra note 65, at pp. 50, 53.

⁶⁸ National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States (1931), 71st Congress, 3rd. Session, House Document No. 722, p. 56.

⁶⁹ Op. cit., supra note 4.

⁷⁰ The Judicial Council of Rhode Island sets the figure at $185 for the principal trial courts of that state. First Report (1927), p. 10Google Scholar.

⁷¹ Op. cit., supra note 65, at p. 53.

⁷² Massachusetts Judicial Council, Third Report (1927), p. 112Google Scholar.

⁷³ Illinois Crime Survey (1929), p. 103Google Scholar.

⁷⁴ Ibid.

⁷⁵ Ibid., pp. 16, 102.

⁷⁶ Op. cit, supra note 1, at p. 191.

⁷⁷ coke's Littleton, s. 1566.

⁷⁸ Blackstone's Commentaries, Bk. IV, p. 93.